IN THE CASE OF:	  

		BOARD DATE:	    5 September 2013

		DOCKET NUMBER:  AR20130001802 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to add the conditions of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI).

2.  The applicant states his PTSD and TBI conditions were not completed and evaluated during his Warrior Transition Unit (WTU) Warrior Care and Transition Program evaluation due to persisting and increasing mental and neurological issues.  Dr. M____ E____, Chief of Behavioral Health at Katterbach Health Clinic, had not fully assessed or completed the assessment before she was mobilized for duty in Afghanistan.  His symptoms of PTSD and TBI increased dramatically after leaving the military and starting a civilian job.  He was mainly treated at the WTU for physical disabilities.  He was never evaluated for mild TBI (mTBI), nor did he have a neck evaluation until after his medical retirement in April 2011.  A recent medical evaluation shows damage to his neck vertebrae area causing him to have neurological left arm pain with loss of strength and severe neck pain.  He cannot travel due to his chronic physical issues which prevent him from traveling for a long distance due to increasing physical pain.

3.  The applicant provides:

* four Standard Forms 600 (Chronological Record of Medical Care), dated 18 November 2010
* Physical Disability Information Report, dated 13 January 2011
* Enlisted Record Brief, dated 13 January 2011
* Orders 014-0001, Installation Management Command-Europe, dated 14 January 2011
* Orders 014-0002, Installation Management Command-Europe, dated 14 January 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 April 2011
* memorandum for record from Dr. M____ E____, Chief of Behavioral Health at Katterbach Health Clinic, dated 9 August 2012, subject:  Medical Evaluation Board (MEB) Questions of (Applicant)
* mTBI Team Report, U.S. Army mTBI Clinic Bamberg, undated

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 17 January 2009 after having prior service in the Regular Army from February 2002 to February 2005.  He held military occupational specialty 88N (Traffic Management Coordinator).

2.  He was ordered to active duty as a member of the U.S. Army Reserve in support of Operation Iraqi Freedom on 17 May 2008 and subsequently served in Iraq from 13 June 2008 to 4 June 2009.

3.  The MEB Narrative Summary (NARSUM), dated 5 August 2010, states he complained of pain to his right lower back and over the lumbar region of his spine, pain to his right lateral hip and upper thigh area, and intermittent radiation of pain in his right leg and numbness of his lateral right foot.  These complaints were associated with a current diagnosis of low back pain (lumbar disc herniation).  His NARSUM further states:

	a.  He reported that he injured his back during a field training exercise in December 2004 when he was digging and lifting sandbags.  He was seen then at a German hospital and prescribed pain medications.  He was not seen again until December 2005 when he aggravated his injury while loading and offloading a truck working as a civilian at the local post office.  He was placed on sick leave for 2 weeks.

	b.  He was able to perform his unit drills and he was mobilized in May 2008.  He aggravated his back again while wearing his body armor and helmet and performing manual labor.  He was again given medication and placed on a restrictive physical profile.  Upon redeployment, he was evaluated and referred to physical therapy at Landstuhl Regional Medical Center until April 2009 when his active duty orders expired.  He was medically extended and placed in the WTU in June 2009.  Despite the physical therapy, his pain persisted.

	c.  He eventually had a magnetic resonance image in November 2009 which showed two herniated lumbar discs.  He continued his rehabilitation and/or physical therapy until March 2010 when his leg went numb and he had severe back pain.  He was admitted to a German hospital.  He was later recommended for an epidural steroid injection which was performed in June 2010 but did not improve his situation.

	d.  After lengthy convalescence, physical therapy, work restrictions, and medication, he failed to improve.  He was issued a permanent physical profile that assigned a rating of "3" for the lower extremities function of the physical profile serial system.  He did not meet Army medical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

4.  On 27 August 2010, an MEB convened.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of low back pain.  He was also diagnosed with the medically acceptable conditions of left shoulder tendinopathy, right elbow bursitis, anxiety, and depression.  The MEB recommended his referral to an informal PEB.

5.  On 9 September 2010 after being counseled by a PEB Liaison Officer (PEBLO), he agreed with the MEB's findings and recommendation.  He indicated:

* he had reviewed the MEB, NARSUM, and physical profile
* he understood the PEB would consider and review only those conditions listed on his physical profile in regard to issues relating to fitness and disability compensation
* the DA Form 3947 (Physical Profile) includes all his current medical conditions and whether they meet retention standards
* the conditions which did not meet retention standards were properly listed on the DA Form 3947, NARSUM, and MEB
* all documentation of military medical care in his possession had been turned in to the PEBLO for inclusion in the MEB
* the MEB accurately covered all his current medical conditions

6.  On 24 November 2010, an informal PEB convened and found the applicant's low back pain condition prevented him from performing the duties required of his grade and military specialty.  The PEB determined that he was physically unfit due to intervertebral disc syndrome listed as low back pain that is neither a battle injury nor caused by an instrumentality of war.  The PEB rated him and awarded him a combined disability rating of 40 percent.

7.  The PEB also considered his other conditions of left shoulder tendinopathy, right elbow bursitis, anxiety, and depression, but did not find those conditions unfitting and therefore were not ratable.  The PEB recommended the applicant's permanent retirement by reason of disability.

8.  He was counseled by the PEBLO throughout the disability process and informed of his rights at each step in the process.  His counseling culminated on 9 December 2010 when he was counseled by a PEBLO regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law. 
Subsequent to this counseling, the applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

9.  His DD Form 214 shows he was honorably retired by reason of permanent disability on 4 March 2011 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 
4-24b(1).  He was placed on the Retired List in the rank of staff sergeant on 5 April 2011.

10.  He provides a memorandum for record from Dr. M____ E____, Chief of Behavioral Health at Katterbach Health Clinic, dated 9 August 2012.  She states:

	a.  The applicant, who was recently medically retired secondary to orthopedic injuries, has been followed by her since July 2009 to the present.  He asked her to clarify whether the MEB should have been pursued for PTSD prior to his retirement and in order to clarify whether she believes he carries this diagnosis.  Upon reviewing his records and due to personal knowledge, she believes he had and continues to have PTSD as a result of his military service.

	b.  However, given that his symptoms were not considered a detriment to the performance of military duties at the time, it is difficult to say that an MEB should have been pursued, specifically since he was in the WTU when his symptoms manifested.  The WTU is considered a fairly low-stress environment and is not the equivalent of regular duty in the Army.  This is further complicated by the fact that the applicant was also suffering from primary medical concerns at the time which were his primary medical objective and was not felt to have considerable morbidity as a result of his anxiety symptoms.

	c.  Since his retirement, his PTSD symptoms have manifested due to the stress of work demands that are inherently different from the demands he had while in the WTU.  While she could not determine if an MEB should have been pursued for PTSD, she can say he definitely had the diagnosis despite her coding it as an unspecified anxiety disorder.  He underwent a Department of Veterans Affairs examination for compensation and pension which determined he had a diagnosis of PTSD on 18 November 2010.  She agrees that he had this diagnosis in retrospect and this memorandum for record is written to clarify this fact.

11.  He provides a post-retirement mTBI Team Report, undated, that shows he had been seen by several specialists after his retirement.  He claimed he was involved in a motor vehicle accident while deployed in 2008 and he was thrown around in the truck.  He also reported a loss of consciousness, feeling dazed, confused, nauseous, and dizzy.  He continued his mission and was not medically evacuated.  He also stated that he began experiencing severe pain, black spots in his vision and disturbed sleep approximately 2 months later.  He currently experiences headaches approximately every other day.  He continues to report black spots in his field of vision and difficulty reading.  He indicated he has problems with balance, memory, concentration, numbness and tingling in his lower back, right leg, and left forearm.  He also reports irritability and numerous sleep issues.  He was evaluated at the mTBI clinic in Bamberg, Germany.  The findings are as follows:

* psychology – PTSD, related to combat experience, history of concussion
* occupational therapy – mild impairment on visual scanning and attention
* physical therapy – decreased balance, decreased function of vestibular system
* mTBI – not evaluated
* psychiatry – medications and depression contributing to cognitive complaints; symptoms not related to his incident in 2009

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule of Rating Disabilities. Paragraph 3-33 (Anxiety, Somatoform, or Dissociative Disorders) states the causes for referral to an MEB under this paragraph require persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment, or persistence or recurrence of symptoms resulting in interference with effective military performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been diagnosed with the medical conditions of PTSD and TBI at the time of his disability retirement in April 2011 and thus awarded an additional finding of unfitness and compensation.

2.  His complete medical records are not available for review with this case.  However, the available evidence shows he complained of low back pain that led to a finding of unfitness for this condition.  When he underwent an MEB medical examination in August 2010, he did not mention anything about a motor vehicle accident.  Likewise, he did not indicate he was experiencing severe pain, black spots in his vision, and/or disturbed sleep.

3.  He was considered by an MEB in August 2010 that referred him to a PEB.  His MEB indicated that he had only one condition that did not meet medical retention standards:  low back pain.  He was counseled and indicated the conditions that did not meet retention standards were properly listed on the DA Form 3947, NARSUM, and MEB; that all documentation of military medical care in his possession had been turned in to the PEBLO for inclusion in the MEB; and that the MEB accurately covered all his current medical conditions.  On 9 September 2010, he concurred with the MEB findings and did not file an appeal.  The MEB referred him to a PEB.

4.  In November 2010, an informal PEB found his back condition was unfitting and rated it as 40-percent disabling.  The PEB recommended his permanent retirement.  Again, he was counseled and advised of his rights.  He concurred with the PEB findings and waived his right to a formal hearing.

5.  The post-service memorandum for record submitted by Dr. M____ E____ does not state he had a diagnosis of PTSD or TBI and more importantly does not indicate either condition was unfitting.  First, nowhere in his NARSUM are symptoms of PTSD or TBI mentioned.  Second, if he was officially diagnosed with PTSD, Dr. M____ E____ does not indicate the degree of such diagnosis (mild, severe), why PTSD/TBI were not reported or listed, and/or whether such conditions failed retention standards or were found unfitting.

6.  The MEB noted he had a diagnosis of anxiety and depression, but found that the conditions met medical retention standards in accordance with chapter 3 of Army Regulation 40-501.  He did not have persistent or recurrent symptoms sufficient to require extended or recurrent hospitalizations.  He did not have persistent or recurrent symptoms necessitating limitations of duty or duty in a protected environment (no physical profile limits required and no statement from his commander noting a diagnosis of PTSD/TBI or any impact on his performance of assigned duties) and he did not have persistence or recurrence of symptoms resulting in interference with effective military performance (no evidence of any anxiety or depression symptoms or that those symptoms interfered with his duties).

7.  Even if the conditions of PTSD/TBI had been included in the MEB, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability and only those conditions found to be unfitting are compensable in the military disability system.

8.  The applicant has provided insufficient evidence that he was diagnosed with PTSD and/or TBI or that these conditions were unfitting at the time of his retirement in April 2011.  The fact that the VA awarded him service-connected disability compensation for PTSD is not evidence of any error in the military disability system in 2010.

9.  The PEB's findings are supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  Based upon the existing military medical and performance evidence reviewed, and the criteria for retention standards in 2010/2011, there is no basis to conclude that the conditions of PTSD and/or TBI should have been included in the applicant's MEB as conditions that did not meet medical retention standards or should have been included in the applicant's PEB as ratable and compensable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ X_______   ___
               CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130001802



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ABCMR Record of Proceedings (cont)                                         AR20130001802



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